Yahoo! Japan License Agreement - Yahoo! Inc. and Yahoo Japan Corp.
YAHOO! JAPAN LICENSE AGREEMENT
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This YAHOO! JAPAN LICENSE AGREEMENT (the "AGREEMENT") is entered into as of
this first day of April, 1996 (the "EFFECTIVE DATE") by and between:
YAHOO! INC., a California corporation ("YAHOO") with its principal offices
at 625 Vaqueros Avenue, Sunnyvale, California 94086; and
YAHOO JAPAN CORPORATION, ("YJC"), with its principal offices at 3-42-3,
Nihonbashi-Hamcho, Chuo-ku, Tokyo 103 Japan; with reference to the following:
RECITALS
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The following provisions form the basis for, and are hereby made a part of,
this Agreement:
A. Yahoo owns, operates and distributes a leading index and directory of
Internet resources, including a hierarchical index, information indexing and
retrieval software and certain other elements of content and software;
B. YJC has been organized with 60% owned by SOFTBANK Corporation, a
Japanese corporation, and 40% owned by Yahoo, pursuant to a joint venture
agreement entered into concurrently herewith (the "JOINT VENTURE AGREEMENT"), in
order to manage in Japan a mirror site of the Yahoo Internet Guide, to develop
related Japanese on-line navigational services, and to conduct certain other
businesses relating to such activities; and
C. Upon the terms and conditions set forth below, YJC and Yahoo will
offer a version of certain Yahoo software and services through YJC in Japan.
AGREEMENT
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NOW, THEREFORE, in consideration of the mutual covenants and conditions set
forth herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE I: DEFINITIONS; RULES OF CONSTRUCTION
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1.1 DEFINITIONS. For purposes of this Agreement, in addition to the
capitalized terms defined elsewhere in this Agreement, the following terms shall
have the meanings ascribed to them below:
1.1.1 "ADVERTISING REVENUE" shall mean the sum of the aggregate amounts
collected plus the fair market value of any other compensation (such as barter
advertising) received by or on behalf of a party hereunder arising from the
license or sale of any Advertising Rights, excluding amounts allocable to any
credits granted for unused services, any direct costs of
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collection, and any third party agency fees paid by the party in connection with
development or sale of the Advertising Rights.
1.1.2 "ADVERTISING RIGHTS" shall mean any advertising sponsorship,
linking and similar promotional rights sold or licensed in connection with (x)
the Mirror Site, or (y) Related Print Publications.
1.1.3 "AFFILIATE" shall mean any corporation, limited liability
company, partnership or other entity (collectively, an "ENTITY" ): (1) that is
controlled by or controls a party (collectively, a "CONTROLLED ENTITY" ); or
(2) that is controlled by or controls any such Controlled Entity, in each
instance of clause (1) or (2) for so long as such control continues. For
purposes of this definition, "control" shall mean the possession, directly or
indirectly, of a majority of the voting power of such entity (whether through
ownership of securities or partnership or other ownership interests, by contract
or otherwise).
1.1.4 "COMPETITIVE NAVIGATIONAL TOOL" shall mean any third party
Internet directory or Internet search tool that is used to perform either a
directory function or a search function, including without limitation, those
Competitive Navigational Tools owned, operated, or offered by the companies
listed in EXHIBIT D attached hereto. No service or tool shall be deemed to be a
"Competitive Navigational Tool" solely because it is offered by a third party
that also offers services or tools that are "Competitive Navigational Tools."
1.1.5 "COMPONENTS" shall mean information, materials, products,
features, services, content, computer software, designs, artistic renderings,
drawings, sketches, characters, layouts, and the digital implementations
thereof, PROVIDED, HOWEVER, that "Components" shall not include Local Content.
1.1.6 "CONFIDENTIAL INFORMATION" shall mean any information disclosed
in the course of this Agreement, which is identified as or should be reasonably
understood to be confidential or proprietary to the disclosing party, including,
but not limited to know-how, trade secrets, log data, technical processes and
formulas, source codes, product designs, sales, cost and other unpublished
financial information, product and business plans, projections, and marketing
data. "Confidential Information" shall not include information which: (i) is
known or becomes known to the recipient on the Effective Date directly or
indirectly from a third party source other than one having an obligation of
confidentiality to the providing party; (ii) hereafter becomes known
(independently of disclosure by the providing party) to the recipient directly
or indirectly from a source other than one having an obligation of
confidentiality to the providing party; (iii) becomes publicly known or
available or otherwise ceases to be secret or confidential, except through a
breach of this Agreement by the recipient; or (iv)is or was independently
developed by the recipient without use of or reference to the providing party's
Confidential Information, as shown by evidence in the recipient's possession.
1.1.7 "DERIVATIVE WORK" shall mean all "derivative works" and
"compilations" within the meaning of such terms as defined in the U.S. Copyright
Act (17 U.S.C. Section 101 et seq.).
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1.1.8 "INTELLECTUAL PROPERTY RIGHTS" shall mean trade secrets, patents,
copyrights, trademarks, know-how, moral rights and similar rights of any type
under the laws of any governmental authority, domestic or foreign including all
applications and registrations relating to any of the foregoing.
1.1.9 "JOINT ENHANCEMENTS" shall mean any enhancements, added
functionalities, additions, extensions or improvements to Yahoo Japan that are
created or developed jointly by YJC, on the one hand, and Yahoo, its Affiliates
or their agents, on the other hand, including any Components which are jointly
contributed to Yahoo Japan.
1.1.10 "LAUNCH DATE" shall mean the first date on which Yahoo Japan is
made generally available to the public in Japan.
1.1.11 "LOCAL CONTENT" shall mean content, including URL's, added to
Yahoo Japan by YJC and that is: (i) specific to the Japanese market; and (ii)
originates in or arises from activities in Japan.
1.1.12 "LOG DATA" shall mean all data generated by an Internet server
that relates to file requests, user identification, session times and similar
available information, as set forth by EXHIBIT F.
1.1.13 "MIRROR SITE" shall mean YJC's mirror site(s) in Japan of the
Yahoo Service site through which the Yahoo Japan will be made available to YJC
Users.
1.1.14 "OPEN NETWORK" shall mean an information technology and
electronic communication system that any person can access via the Internet.
1.1.15 "RELATED PRINT PUBLICATIONS" shall mean tangible printed
material, including magazines, books and periodicals, that relate directly and
substantially to Yahoo Japan, and have a title in each case that includes the
word, "Yahoo!" (such as "Yahoo! Japan").
1.1.16 "UPGRADES" shall mean all error corrections, upgrades,
enhancements, new releases, and new versions of Yahoo Japan.
1.1.17 "YJC USERS" shall mean Internet-users to whom YJC provides access
to Yahoo Japan.
1.1.18 "YAHOO BRAND FEATURES" shall mean Yahoo trademarks, trade names,
service marks, service names, distinct elements of the Yahoo Service Look and
Feel and all other Components specifically associated with the "Yahoo!" brand or
as to which Yahoo has established trademark or trade dress rights, and any
modifications to the foregoing that may be created during the Term of this
Agreement (as defined in Section 9.1 hereof).
1.1.19 "YAHOO BRAND GUIDELINES" shall mean the guidelines for use of the
Yahoo Brand Features in Yahoo Japan, as specifically set forth in EXHIBIT B
attached hereto.
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1.1.20 "YAHOO JAPAN ENHANCEMENTS" shall mean any enhancements, added
functionalities, additions, extensions or improvements to Yahoo Japan that are
created or developed by Yahoo, its Affiliates or their agents, including any
Components which are contributed to Yahoo Japan by such persons or Entities.
1.1.21 "YAHOO JAPAN" shall mean any version of the Yahoo Service that is
customized and localized specifically for all or any portion of Japan and the
Japanese market in any and all languages specifically relevant to the Japanese
market.
1.1.22 "YAHOO JAPAN SITE" shall mean one or more servers on which,
collectively, Yahoo Japan and the Mirror Site will be made available pursuant to
this Agreement.
1.1.23 "YAHOO JAPAN DERIVATIVE WORK" shall mean Derivative Work,
including any Japanese translations and customizations as necessary for the
Japanese customer market, created by YJC from Yahoo Properties for use in Yahoo
Japan.
1.1.24 "YAHOO PROPERTIES" shall mean collectively: (i) the Yahoo
Service, including both the Yahoo Service Look and Feel and the Yahoo Brand
Features; (ii) Yahoo Japan; (iii) Yahoo Tools; and (iv) Yahoo Japan
Enhancements.
1.1.25 "YAHOO SERVICE" shall mean, collectively, the following (in each
case as the same may be modified, upgraded, updated or enhanced during the term
of this Agreement):
(i) the aggregate collection of Internet-based products, services,
software and other features which Yahoo makes generally available now or in the
future through the World Wide Web portion of the Internet (currently located at
http://www.yahoo.com), as described in EXHIBIT A attached hereto, including:
(a) Yahoo Brand Features; (b) Yahoo Service Look and Feel; (c) the collection of
HTML files and certain related scripts comprising a directory to URLs, including
the search tools currently included with such directory as the same may be
modified from time to time; and (d) Yahoo's hierarchical index, information
indexing and retrieval software (commonly referred to as Yahoo's "search
engine"); and
(ii) all other directory-, index- or search-related elements of
content and software that may be offered by Yahoo in the future in connection
with the service described in (i) above; and
(iii) any enhancements, upgrades, improvements or modifications of the
Yahoo's search engine, and all written materials, documents and manuals
containing functional information or operating instructions for the foregoing as
the same may be modified from time to time,
PROVIDED, HOWEVER, the Yahoo Services shall not include any content licensed to
Yahoo from a third party (including without limitation, in sports, news,
weather, entertainment, and other such content and information), unless Yahoo
has express rights from such third party to sublicense such content.
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1.1.26 "YAHOO SERVICE LOOK AND FEEL" shall mean the artistic renderings,
drawings, animations, sketches, characters, layouts and designs, and digital
implementations thereof which are embodied within the Yahoo Service.
1.1.27 "YAHOO TOOLS" shall mean those tools and search engine set forth
in EXHIBIT A.
1.1.28 "YJC REVENUE" shall shall mean [XXXX].
1.2 RULES OF CONSTRUCTION. As used in this Agreement, all terms used in the
singular shall be deemed to include the plural, and vice versa, as the context
may require. The words "hereof," "herein" and "hereunder" and other words of
similar import refer to this Agreement as a whole, including any exhibits
hereto, as the same may from time to time be amended or supplemented. The word
"including" when used herein is not intended to be exclusive and means
"including, without limitation." The descriptive headings of this Agreement are
inserted for convenience of reference only and do not constitute a part of and
shall not be utilized in interpreting this Agreement. The terms "party" and
"parties" shall refer to Yahoo and YJC, individually or collectively. This
Agreement has been negotiated by the parties hereto and their respective counsel
and shall be fairly interpreted in accordance with its terms and without any
rules of construction relating to which party drafted the Agreement being
applied in favor of or against either party.
ARTICLE 2: GRANT OF RIGHTS
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2.1 LICENSE GRANT TO YJC. Subject to all of the terms and conditions of this
Agreement, Yahoo hereby grants to YJC, during the Term of this Agreement:
(i) an exclusive right and license to use, reproduce, display, perform,
transmit, distribute, market, promote, and permit YJC Users to use, in on-line
form and in the manner described in this Agreement, on an Open Network in Japan:
(x) the Yahoo Service solely through the Mirror Site; and (y) Yahoo Japan; in
each case solely under a title that indicates the word "Yahoo!" (such as "Yahoo!
Japan");
(ii) a non-exclusive right to use, reproduce, display, perform, distribute
and transmit the Yahoo Brand Features in Japan solely in connection with
advertising, marketing, and promoting Yahoo Japan in Japan;
(iii) an exclusive right to use, reproduce, and display the Yahoo Brand
Features in Japan solely in connection with Related Print Publications;
PROVIDED, HOWEVER, that Yahoo obtains written consent from Ziff-Davis Publishing
Company to grant such rights, which consent Yahoo shall use best efforts to
obtain; and PROVIDED, FURTHER, that YJC obtain the prior written consent of
Yahoo to use the Yahoo Brand Features on each such print material, which consent
Yahoo shall not unreasonably withhold;
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(iv) a non-exclusive right and license to use and reproduce for internal
purposes any and all software (in object code and source code forms) associated
with the Yahoo Properties solely to facilitate the exploitation of the Yahoo
Properties and YJC's internal use in furtherance of YJC's rights, as anticipated
and described in this Agreement; and
(v) subject to the terms and limitations set forth in Section 2.3 of this
Agreement, a non-exclusive right to make Yahoo Japan Derivative Works, solely
for use, incorporation, and integration in Yahoo Japan and solely as necessary
for the Japanese consumer market in Japan;
(vi) the exclusive worldwide right to develop, create, maintain,
operate, commercially exploit, market, promote and otherwise distribute Yahoo
Japan through any electronic means, subject to the exceptions set forth in
Section 2.7 hereto.
PROVIDED, HOWEVER, that YJC Users' right to access and use the Yahoo Properties
shall be subject to such customary limitations and restrictions on use and
reproduction as Yahoo may impose with respect to the Yahoo Properties. No
rights or licenses are granted by Yahoo to YJC except for those expressly
granted in this Section 2.1.
2.2 NO OTHER RIGHTS. Except as expressly provided in this Agreement, YJC shall
neither: (i) distribute or make available the Yahoo Service or Yahoo Japan
except in its entirety as a complete work; (ii) distribute or make available the
Yahoo Service or Yahoo Japan other than in on-line electric form; (iii) modify,
adapt, translate, or create derivative works based on the Yahoo Service or Yahoo
Japan; nor (iv) remove any copyright or other proprietary rights notices from
the Yahoo Properties.
2.3 YAHOO JAPAN CONTENT. Prior to the Launch Date, Yahoo shall provide to YJC
with Yahoo Properties to the extent necessary to launch the Yahoo Japan Site and
for YJC to create Yahoo Japan Derivative Works for incorporation into Yahoo
Japan. In the event that YJC wants to post or incorporate any new service,
content (other than Local Content), or sponsorships on Yahoo Japan, YJC shall
obtain Yahoo's prior written consent, which consent shall not be unreasonably
withheld.
2.3.1 MINIMUM CONTENT SPECIFICATIONS. Yahoo Japan shall, at a minimum,
contain all directories, including categories, subcategories, and URL's,
contained within the Yahoo Service, as such service or any portion thereof may
be modified, upgraded, updated or otherwise enhanced during the Term of this
Agreement; PROVIDED, HOWEVER, that Yahoo Japan does not include any content
licensed by Yahoo from a third party. Yahoo warrants that Yahoo Japan shall be
the most comprehensive, highest quality and "state of the art" Internet index
and directory which is owned, operated and/or distributed by Yahoo, and will be
provided in substantially the same format and under substantially the same
editorial policies as currently govern the Yahoo Service (except to the extent
otherwise agreed upon by YJC).
2.3.2 YJC CONTENT MODIFICATIONS. YJC shall have the right to direct
Yahoo to eliminate from Yahoo Japan any Components which: (i) relate to a new
feature or service added to Yahoo Japan after the date of this Agreement, which
new feature or service would give rise to a breach of any agreement between YJC
and any third party entered into prior to the addition of such new
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feature or service; (ii) would violate any applicable law, regulation or third
party right; or (iii)involve a Component that YJC determines, in its reasonable
good faith judgment, has resulted or would be expected to result in substantial
adverse publicity, legal liability or adverse relations with a significant
number of YJC Users as a result of such Component being offensive, inaccurate or
otherwise objectionable. In addition, YJC may eliminate from Yahoo Japan such
other Components unrelated to directory, index or search functions as YJC deems
appropriate, subject to Yahoo's prior approval, which approval shall not be
unreasonably withheld nor delayed.
2.4 LOCAL CONTENT.
2.4.1 YJC RESPONSIBILITIES. YJC shall be solely responsible for
collecting and classifying Local Content, which Local Content may be integrated,
at Yahoo's sole discretion, into the Yahoo Services under a directory for such
Local Content (the "LOCAL CONTENT DIRECTORY"), which directory shall be created
and maintained by Yahoo.
2.4.2 LICENSE GRANTED BY YJC. Subject to all of the terms and
conditions of this Agreement, YJC hereby grants Yahoo a non-exclusive, royalty
free worldwide license to use Local Content solely for the purpose of
incorporating such Local Content into Yahoo Japan and into the Yahoo Service and
related Yahoo properties to the extent provided for hereunder. Subject to the
foregoing license grant, YJC retains all right, title to and interest in the
Local Content.
2.5 YAHOO OWNERSHIP. Yahoo shall retain all ownership rights in and to the
Yahoo Properties, Yahoo Japan Enhancements, and the Yahoo Japan Derivative
Works. YJC assigns any interest it may be deemed to possess in such Yahoo
Properties to Yahoo and will assist Yahoo in every reasonable way, at Yahoo's
expense, to obtain, secure, perfect, maintain, defend and enforce for Yahoo's
benefit all Intellectual Property Rights with respect to the Yahoo Properties.
2.6 JOINT ENHANCEMENTS. The respective ownership interests of YJC and Yahoo in
any Joint Enhancements shall be as agreed upon by the parties at the time such
Joint Enhancements are created or contributed; PROVIDED, HOWEVER, that, if the
parties cannot reach agreement as to the ownership of any Joint Enhancement,
then such Joint Enhancement shall be deemed to be jointly owned by YJC and Yahoo
and any subsequent use of such Joint Enhancement by either party shall require
the prior approval of the other party, which approval shall not be unreasonably
withheld or delayed.
2.7 EXCLUSIVITY. After the Launch Date, Yahoo shall not, either directly or
indirectly, grant any right or license, whether exclusive or non-exclusive, to
any person, to use, display, reproduce or permit others to use the Yahoo Service
in electronic, on-line form in Japan; PROVIDED, HOWEVER, that nothing herein
shall be construed as prohibiting, preventing, restricting, or otherwise
limiting the ability of a person in Japan from electronically accessing the
Yahoo Service on a server located in any jurisdiction outside Japan. YJC's
rights of exclusivity above and in Sections 2.1 hereto shall be subject to: (i)
the rights granted by Yahoo to Microsoft Corporation concerning the "Microsoft
Network", pursuant to the
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agreement between Yahoo and Microsoft Corporation dated August 17, 1995; and
(ii) the rights granted by Yahoo to Global Network Navigator, Inc., pursuant to
the agreement between Yahoo and Global Network Navigator, Inc., dated October
13, 1995.
ARTICLE 3: LOCALIZED SERVICE SITE DEVELOPMENT AND OPERATIONS
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3.1 DEVELOPMENT OF YAHOO JAPAN SITE. Yahoo shall assist in developing the
Yahoo Japan Site in substantial conformance with the development specifications
set forth in EXHIBIT A attached hereto.
3.2 UPGRADES. If Yahoo creates any Upgrades of Yahoo Japan (including any
Upgrades of the Yahoo Service which will be reflected through Yahoo Japan) which
materially modify the format or functionality of Yahoo Japan, Yahoo shall
provide YJC with the opportunity to review and test each such Upgrade prior to
its public release.
3.3 YJC TRAINING. YJC shall send at least two (2) of its employees to attend a
training session organized or conducted by Yahoo regarding the Yahoo Service,
prior to installation of the Yahoo Japan Site. Such training session shall be
conducted at a location to be selected by Yahoo and for a period of time to be
determined by Yahoo. YJC shall pay all travel, lodging, and other related
expenses associated with attendance of its employees at such session.
ARTICLE 4: PROMOTIONAL MATERIALS, ADVERTISING, AND TRADEMARKS
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4.1 YJC'S EFFORTS. As a material condition to this Agreement, YJC shall use
all commercially reasonable efforts during the Term to offer Yahoo Japan to the
general public via the Internet, in accordance with user performance (as
measured by factors such as latency of user response) consistent with other high
traffic on-line services, to market and promote the commercial exploitation of
Yahoo Japan in Japan, and to sell advertising and promotional services in Yahoo
Japan.
4.2 PROMOTIONAL MATERIALS/PRESS RELEASES. YJC and Yahoo shall mutually agree
to the form of a joint press release (the "PRESS RELEASE") to be issued on or
prior to the Launch Date, which will describe in general terms the creation of
Yahoo Japan. Each party shall submit to the other party, for its prior written
approval, which shall not be unreasonably withheld or delayed, disclosures,
press releases or other similar announcements relating to this Agreement or the
parties' relationship as described herein. Notwithstanding the foregoing,
either party may issue press releases and other disclosures as required by law
or as reasonably advised by legal counsel without the consent of the other party
and in such event prompt notice thereof shall be provided to the other party
prior to three (3) business days of the issuance of such press release or
disclosure. YJC shall supply Yahoo with specimens of each of all promotional
materials using the Yahoo Brand Features, all of which shall comply with the
Yahoo Brand Guidelines and other provisions of this Agreement. YJC shall remedy
any violation of the Yahoo Brand Guidelines or of this Agreement as soon as
practicable following receipt of notice from Yahoo of such violation. YJC shall
consider in good faith any suggestions or comments of Yahoo in the content and
design of any and all promotional materials.
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4.3 TRADEMARKS.
4.3.1 ACKNOWLEDGMENT OF OWNERSHIP. YJC acknowledges that: (i) as
between YJC and Yahoo, Yahoo owns all right, title and interest in the Yahoo
Brand Features; and (ii) neither YJC nor any other persons will acquire any
ownership interest in the Yahoo Brand Features or associated goodwill by virtue
of this Agreement or the use of the Yahoo Service pursuant to this Agreement.
4.3.2 USAGE GUIDELINES. YJC's use of the Yahoo Brand Features shall be
subject to Yahoo's prior written approval and consent and shall adhere to the
Yahoo Brand Guidelines set forth in EXHIBIT B attached hereto; PROVIDED,
HOWEVER, YJC may use the mark "YAHOO JAPAN" and the associated logo (the "YAHOO
JAPAN MARKS") without any such consent so long as YJC uses such Yahoo Japan
marks: (i) in a manner and form consistent with Yahoo's use of its Yahoo Brand
Features; (ii) without making any modifications or changes thereto; (iii) in an
advertising campaign, promotional or other event or product that has high
consumer visibility; and (iv) without co-branding or other similar collaboration
with any third party brand features. YJC may use the Yahoo Japan Marks in the
manners set forth in Subsections 4.3.2(i), (ii), (iii), and (iv) subject to
Yahoo's prior approval and consent. In any event, YJC's use of the Yahoo Brand
Features shall be at least of a quality and standard reasonably commensurate
with YJC's use of its own trademarks. Throughout the Term of this Agreement,
Yahoo shall promptly provide YJC with all written details of, specifications for
and artwork for all Yahoo Brand Features as required by YJC for performing its
rights and obligations under this Agreement. If any use of the Yahoo Brand
Features by YJC fails to satisfy such quality standards, Yahoo may terminate
YJC's right to use such Yahoo Brand Features; PROVIDED, HOWEVER, that YJC has
failed to cure such failure to satisfy within thirty (30) business days from
receipt by YJC of a notice of such failure to satisfy quality standards sent by
Yahoo.
4.3.3 NO ADVERSE CLAIM. YJC agrees that it will not at any time during
or after this Agreement assert any claim or interest in or do anything which may
adversely affect the validity or enforceability of any Yahoo Brand Features.
Unless otherwise agreed to between the parties, YJC will not register, seek to
register, or cause to be registered any of the Yahoo Brand Features without
Yahoo's prior written consent, and YJC shall not adopt or use Yahoo Brand
Features or any confusingly similar word or symbol as part of YJC's company
name, nor allow Yahoo Brand Features to be used by others, without Yahoo's prior
written consent. With respect to any trademark registrations and pending
trademark applications for any Yahoo Brand Features in Japan owned or filed by
YJC without Yahoo's prior written consent ("YAHOO JAPAN MARKS"), YJC shall
promptly transfer ownership in such Yahoo Japan Marks to Yahoo, and Yahoo shall
promptly reimburse YJC its reasonable costs incurred in obtaining such
registration and in filing such applications. Failure of YJC to transfer
ownership in such Yahoo Japan Marks within one hundred twenty (120) days of the
Effective Date of this Agreement shall be considered a material breach of this
Agreement. Such Yahoo Japan Marks shall be considered part of and included in
the Yahoo Brand Features for purposes of this Agreement.
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4.4 RESTRICTIVE COVENANT. During the Term, YJC agrees that it shall not: (i)
enter into a commercial arrangement or transaction with any person for the
customization or localization of a Competitive Navigational Tool for the Japan
market and for use within Japan without Yahoo's prior written approval; or (ii)
develop, commercialize, market or promote any Competitive Navigational Tool.
Without limiting the foregoing, YJC shall not provide any on-line advertising
that contains a direct hypertext link to any Competitive Navigational Tool.
4.5 YAHOO JAPAN ADVERTISING. Subject to the provisions of Section 4.7 hereto,
YJC shall have the exclusive right to include advertising, marketing and
promotional information in Yahoo Japan. The parties hereto agree that all
revenues and income derived by each of Yahoo and YJC in connection with
advertising, marketing and promotional information in Yahoo Japan shall accrue
solely to YJC, subject to the calculation and payment of the Fees as set out in
EXHIBIT E attached hereto. YJC shall be solely and exclusively responsible for
ensuring that all advertising, marketing and promotional information conducted
and provided by YJC complies with all Japanese local, federal, and other
governmental laws and regulations that may be applicable thereto.
4.6 LOG DATA. YJC will provide Yahoo with access to all Log Data containing
the categories set forth in EXHIBIT F from use of Yahoo Japan via Yahoo's Log
Data Tool as described in EXHIBIT A. All Log Data shall be maintained as
Confidential Information by each of YJC and Yahoo.
4.6.1 LIMITED DISCLOSURE TO THIRD PARTIES. Notwithstanding the
foregoing, no party shall be prohibited from providing Log Data to any third
party (on a confidential basis) for aggregation or analysis, or otherwise on an
aggregated basis to advertisers, potential advertisers and other third parties
in connection with the sale of advertising, or to third parties in connection
with market research and similar publishing; provided that neither party will
use such information in a misleading fashion so as to understate or overstate to
any third party the magnitude of usage of Yahoo Japan.
4.6.2 OWNERSHIP OF LOG DATA. Yahoo shall own all rights, title, and
interest in and to any and all Log Data generated on Mirror Site; PROVIDED,
HOWEVER, Yahoo shall grant to YJC a non-exclusive, royalty-free license to use
and reproduce such Log Data for internal, non-commercial purposes. Yahoo shall
own all rights, title, and interest in and to any and all Log Data generated on
any Yahoo Service mirror site.
4.7 MESSAGE BAR. Yahoo may, upon seven (7) business days advance notice to YJC,
place content on the home page of Yahoo Japan for up to five (5) consecutive
days.
ARTICLE 5: CONFIDENTIAL INFORMATION
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5.1 PROTECTION OF CONFIDENTIAL INFORMATION. The parties recognize that, in
connection with the performance of this Agreement, each of them may disclose to
the other its Confidential Information. The party receiving any Confidential
Information agrees to maintain the confidential status of such Confidential
Information and not to use any such Confidential Information for any purpose
other than the purpose for which it was originally disclosed to the
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receiving party, and not to disclose any of such Confidential Information to any
third party. Neither party shall disclose the other's Confidential Information
to its employees and agents except on a need-to-know basis.
5.2 PERMITTED DISCLOSURE. The parties acknowledge and agree that each may
disclose Confidential Information: (i) as required by law; (ii) to their
respective directors, officers, employees, attorneys, accountants and other
advisors, who are under an obligation of confidentiality, on a "need-to-know"
basis; (iii) to investors or joint venture partners, who are under an obligation
of confidentiality, on a "need-to-know" basis; or (iv) in connection with
disputes or litigation between the parties involving such Confidential
Information and each party shall endeavor to limit disclosure to that purpose
and to ensure maximum application of all appropriate judicial safeguards (such
as placing documents under seal). In the event a party is required to disclose
Confidential Information as required by law, such party will, to the extent
practicable, in advance of such disclosure, provide the other party with prompt
notice of such requirement. Such party also agrees, to the extent legally
permissible, to provide the other party, in advance of any such disclosure, with
copies of any information or documents such party intends to disclose (and, if
applicable, the text of the disclosure language itself) and to cooperate with
the other party to the extent the other party may seek to limit such disclosure.
5.3 APPLICABILITY. The foregoing obligations of confidentiality shall apply to
directors, officers, employees and representatives of the parties and any other
person to whom the parties have delivered copies of, or permitted access to,
such Confidential Information in connection with the performance of this
Agreement, and each party shall advise each of the above of the obligations set
forth in this Article 5.
5.4 THIRD PARTY CONFIDENTIAL INFORMATION. Any Confidential Information of a
third party disclosed to either party shall be treated by YJC or Yahoo, as the
case may be, in accordance with the terms under which such third party
Confidential Information was disclosed; PROVIDED, HOWEVER, that the party
disclosing such third party Confidential Information shall first notify the
other party that such information constitutes third party Confidential
Information and the terms applicable to such third party Confidential
Information and provided further that either party may decline, in its sole
discretion, to accept all or any portion of such third party Confidential
Information.
5.5 CONFIDENTIALITY OF AGREEMENT. Except as required by law or generally
accepted accounting principles, and except to assert its rights hereunder or for
disclosures to its own officers, directors, employees and professional advisers
on a need-to-know basis or in confidence to investors, investment bankers,
financial institutions or other lenders or acquirers, each party hereto agrees
that neither it nor its directors, officers, employees, consultants or agents
shall disclose the terms of this Agreement or specific matters relating hereto
without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed.
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5.6 FUTURE BUSINESS ACTIVITIES. This Agreement shall not limit either party's
present and future business activities of any nature, including business
activities which could be competitive with the other party, except: (i) to the
extent such activities would involve a breach of the confidentiality
restrictions contained in this Article 5; (ii) to the extent provided in Section
4.4, or (iii) as otherwise expressly provided herein. Nothing in this Agreement
will be construed as a representation or agreement that the recipient of
Confidential Information will not develop or have developed for it products,
concepts, systems or techniques contemplated by or embodied in such Confidential
Information, provided that such recipient does not violate any of its
obligations under this Article 5 in connection with such development.
ARTICLE 6: FEES AND PAYMENT
----------------------------
6.1 FEES. YJC shall pay to Yahoo, as full and complete remuneration for the
performance of all of Yahoo's obligations hereunder, the fees and amounts that
are set forth in EXHIBIT E attached hereto (the "FEES"). All payments under
this Agreement shall be made by wire transfer to an account designated by Yahoo
within thirty days of the end of the quarter in which such amounts are collected
by YJC, and shall be accompanied by a written report signed by an authorized YJC
officer setting forth a description of transactions given rise to payments in
detail sufficient to support calculations of the amounts paid, as well as such
other similar information as Yahoo may reasonably request.
6.2 CURRENCY. In this Agreement, all references to currency shall be
references to the lawful currency of the United States of America. Any and all
conversions shall be based on the exchange rate noted in the Foreign Exchange,
Telegraphic Transfer Exchange Rate for Sale vis-a-vis Customers, as reported in
the Nihon Keizai Shinbun on the date each payment is due.
6.3 INTEREST. Any late payment of fees made by YJC under this Agreement shall
bear interest at the annual rate of ten percent (10%) from the date on which
such payment was due.
6.4 TAXES. All Fees paid by YJC to Yahoo hereunder shall be inclusive of all
excise and customs duties and other similar taxes imposed by any governmental
authority relating to the export of the Yahoo Properties, and all withholding
taxes that may be required by either the Japanese or the United States
governments under the relevant tax laws and treaties, all of which taxes shall
be paid by Yahoo. All Fees paid by YJC to Yahoo hereunder shall be exclusive of
all sales, goods and services, use and other similar taxes imposed by any
governmental authority concerning the use of the Yahoo Properties in accordance
with this Agreement, all of which taxes shall be paid by YJC.
6.5 WITHHOLDING. If any Japanese withholding taxes are imposed on payments to
Yahoo by YJC under this Article 6, YJC shall withhold such amounts, pay the same
to the Japanese tax authority, and promptly furnish Yahoo with appropriate
documentation of the amounts so withheld as soon as practicable. The parties
shall cooperate to make any necessary filings to
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utilize the lowest withholding rate available under any treaty between Japan and
the United States.
6.6 AUDITING RIGHTS. To ensure compliance with the terms of this Agreement,
Yahoo shall have the right, at its own expense, to direct an independent
certified public accounting firm to inspect and audit all of the accounting and
sales books and records of YJC which are relevant to Fees payable to Yahoo;
PROVIDED, HOWEVER, that: (i) Yahoo provides fifteen (15) business days notice
prior to such audit; (ii) any such inspection and audit shall be conducted
during regular business hours in such a manner as not to interfere with normal
business activities; (iii) in no event shall audits be made hereunder more
frequently than once (1) per calendar year; (iv) if any audit should disclose an
underpayment by YJC, YJC shall promptly pay such amount to the other party; and
(v) the reasonable fees and expenses relating to of any audit which reveals an
underpayment in excess of five percent (5%) of the amount owing for the
reporting period in question shall be borne entirely by YJC.
ARTICLE 7: REPRESENTATIONS AND WARRANTIES
------------------------------------------
7.1 MUTUAL REPRESENTATIONS AND WARRANTIES. Each party represents and warrants
to the other party that:
(i) such party has been duly incorporated and is validly existing under
the laws such party is incorporated;
(ii) such party has the full corporate right, power and authority to enter
into this Agreement and to perform the acts required of it hereunder;
(iii) the execution of this Agreement by such party, and the
performance by such party of its obligations and duties hereunder, do not and
will not violate any agreement to which such party is a party or by which it is
otherwise bound;
(iv) when executed and delivered by such party, this Agreement will
constitute the legal, valid and binding obligation of such party, enforceable
against such party in accordance with its terms; and
(v) such party acknowledges that the other party makes no representations,
warranties or agreements related to the subject matter hereof that are not
expressly provided for in this Agreement.
7.2 YJC REPRESENTATIONS AND WARRANTIES. In addition to the representations and
warranties of Section 7.1 hereto, YJC further represents and warrants:
(i) the Components and Local Content which YJC includes in or associates
with Yahoo Japan do not and shall neither: (i) infringe on or violate any
copyright, U.S. patent or any other proprietary right of any third party; nor
(ii) violate any applicable law, regulation or third party right;
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(ii) YJC's performance of this Agreement shall comply in all material
respects with, and shall neither contravene, breach nor infringe, any laws or
regulations of Japan; and
(iii) the Local Content provided by YJC shall not contain any obscene
or defamatory materials, information, data or content.
7.3 YAHOO REPRESENTATIONS AND WARRANTIES. In addition to the representations
and warranties of Section 7.1 hereto, Yahoo further represents and warrants:
(i) the Components which Yahoo includes in or associates with Yahoo Japan
do not and shall neither: (i) infringe on or violate any copyright, U.S. patent
or any other proprietary right of any third party; nor (ii) violate any
applicable law, regulation or third party right;
(ii) the Yahoo Japan Site shall operate and function substantially at the
level of performance at which Yahoo's principal site for Yahoo Service operates
and functions in the United States;
(iii) Yahoo has sufficient right, title and ownership of all
Intellectual Property rights being licensed to YJC pursuant to this Agreement,
without infringement of the rights of third parties, and with respect to any
third party materials being licensed to YJC hereunder, solely to the extent that
Yahoo has received a warranty and representation from such third party; and
(iv) Yahoo has not granted, conveyed or otherwise provided any other Entity
with the right to create, commercially exploit, or otherwise use a version of
the Yahoo Properties specifically designed for the Japanese market, except for
those rights granted to: (x) Ziff-Davis Publishing Company pursuant to an
agreement to be executed and delivered between Yahoo and Ziff-Davis Publishing
Company with respect to YAHOO! INTERNET LIFE magazine and related products; (y)
IDG Books Worldwide, Inc., pursuant to the agreement between Yahoo and IDG Books
Worldwide, Inc., dated June 2, 1995, with respect to books and related products;
and (z) those companies stated in Section 2.7 hereto.
ARTICLE 8: LIMITATION OF LIABILITY; DISCLAIMER; INDEMNIFICATION
----------------------------------------------------------------
8.1 LIABILITY. EXCEPT AS PROVIDED IN SECTION 8.3, UNDER NO CIRCUMSTANCES SHALL
EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR INDIRECT, INCIDENTAL,
CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES (EVEN IF THAT PARTY HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), ARISING FROM ANY PROVISION OF THIS
AGREEMENT, SUCH AS, BUT NOT LIMITED TO, LOSS OF REVENUE OR ANTICIPATED PROFITS
OR LOST BUSINESS.
8.2 NO ADDITIONAL WARRANTIES. EXCEPT AS SET FORTH IN THIS AGREEMENT, NEITHER
PARTY MAKES ANY, AND EACH PARTY HEREBY SPECIFICALLY DISCLAIMS ANY
REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE PRODUCTS AND
SERVICES CONTEMPLATED BY THIS AGREEMENT, INCLUDING ANY IMPLIED WARRANTY OF
MERCHANTABILITY OR
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FITNESS FOR A PARTICULAR PURPOSE AND IMPLIED WARRANTIES ARISING FROM COURSE OF
DEALING OR COURSE OF PERFORMANCE.
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8.3 INDEMNIFICATION.
8.3.1 YAHOO INDEMNITY. Subject to the limitations set forth below,
Yahoo, at its own expense, shall indemnify, defend (or at Yahoo's option and
expense, settle, provided that Yahoo provides YJC with prior notice of any
settlement that will significantly impact YJC's rights hereunder) and hold YJC
and any YJC Affiliates and their officers, directors, employees, agents,
distributors and licensees (the "YJC INDEMNIFIED PARTY(IES)") harmless from and
against any judgment, losses, deficiencies, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses), whether required to be paid to a third party or otherwise incurred in
connection with or arising from any claim, suit, action or proceeding
(collectively, a "CLAIM"), against a YJC Indemnified Party to the extent the
basis of such Claim is that: (i) the Yahoo Properties infringe any Intellectual
Property Rights of a third party; (ii) Yahoo does not have the right to license
the Yahoo Properties as set forth herein; (iii) Yahoo has materially breached
any of its duties, representations or warranties under this Agreement; or (iv) a
third party has been or may be injured or damaged in any way by any defamation,
libel, slander or similar wrongful action arising from the Yahoo Properties;
PROVIDED, HOWEVER, that Yahoo shall have no obligation to the YJC Indemnified
Parties pursuant to this Section unless: (x) YJC gives Yahoo prompt written
notice of the Claim; (y) Yahoo is given the right to control and direct the
investigation, preparation, defense and settlement of the Claim; and (z) YJC
provides Yahoo with reasonable assistance in the defense or settlement thereof;
and provided further that if any settlement results in any ongoing liability to,
or prejudices or detrimentally impacts YJC or any YJC Affiliate, and such
obligation, liability, prejudice or impact can reasonably be expected to be
material, then such settlement shall require YJC's written consent, which
consent shall not be unreasonably withheld or delayed. In connection with the
defense of any such Claim, each YJC Indemnified Party may have its own counsel
in attendance at all public interactions and substantive negotiations at its own
cost and expense.
8.3.2 NO YAHOO LIABILITY. Notwithstanding the foregoing, Yahoo assumes
no liability for infringement claims arising from: (i) a combination of the
Yahoo Properties or any part thereof with other Components not provided by Yahoo
where such infringement would not have arisen from the use of the Yahoo
Properties or portion thereof absent such combination; or (ii) modification of
the Yahoo Properties or portion thereof by anyone other than Yahoo or on its
behalf where such infringement would not have occurred but for such
modifications.
8.3.3 YAHOO LIABILITY. If Yahoo receives notice of an alleged
infringement relating to the Yahoo Properties, Yahoo, at its option and expense,
shall use all reasonable efforts to: (i) obtain a license at no cost to YJC
permitting continued use of the Yahoo Properties on terms and conditions
consistent with the rights granted to YJC hereunder; (ii) modify the infringing
portion of the Yahoo Properties to perform its intended function without
infringing third party rights; or (iii) provide a substitute for such infringing
portion. If none of the foregoing options are reasonably available to Yahoo,
then upon written notice by Yahoo to YJC, YJC shall thereupon take the necessary
action to discontinue further distribution of the Yahoo Properties to the extent
that and only for so long as such use would be infringing, with an appropriate
adjustment in Fees. Notwithstanding the foregoing, this Agreement shall remain
in full force and effect in accordance with the terms hereof with respect to all
noninfringing portions of the Yahoo
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Properties; PROVIDED, HOWEVER, that YJC shall be entitled to terminate this
Agreement and/or seek damages as a result of any material discontinuation.
8.3.4 YJC INDEMNIFICATION. Subject to the limitations set forth below,
YJC, at its own expense, shall indemnify, defend (or at YJC's option and
expense, settle, provided that YJC provides Yahoo with prior notice of any
settlement that will significantly affect Yahoo's rights hereunder) and hold
Yahoo and any Yahoo Affiliates and their officers, directors, employees, agents,
distributors and licensees (the "YAHOO INDEMNIFIED PARTY(IES)") harmless from
and against any judgment, losses, deficiencies, damages, liabilities, costs and
expenses (including, without limitation, reasonable attorneys' fees and
expenses), whether required to be paid to a third party or otherwise incurred in
connection with or arising from any Claim against a Yahoo Indemnified Party to
the extent the basis of such Claim is that: (i) any Yahoo Japan Derivative
Work, or any Local Content infringes any Intellectual Property Rights of a third
party; (ii) YJC does not have the right to license the Local Content as set
forth herein; (iii) YJC has materially breached any of its duties,
representations or warranties under this Agreement; or (iv) a third party has
been or may be injured or damaged in any way by any defamation, libel, slander
or similar wrongful action arising from any Local Content or any Yahoo Japan
Derivative Work; PROVIDED, HOWEVER, that YJC shall have no obligation to the
Yahoo Indemnified Parties pursuant to this Section unless: (x) Yahoo gives YJC
prompt written notice of the Claim; (y) YJC is given the right to control and
direct the investigation, preparation, defense and settlement of the Claim; and
(z) Yahoo provides YJC with reasonable assistance in the defense or settlement
thereof; and provided further that if any settlement results in any ongoing
liability to, or prejudices or detrimentally impacts Yahoo or any Yahoo
Affiliate, and such obligation, liability, prejudice or impact can reasonably be
expected to be material, then such settlement shall require Yahoo's written
consent, which consent shall not be unreasonably withheld or delayed. In
connection with the defense of any such Claim, each Yahoo Indemnified Party may
have its own counsel in attendance at all public interactions and substantive
negotiations at its own cost and expense.
8.3.5 NO YJC LIABILITY. Notwithstanding the foregoing, YJC assumes no
liability for infringement claims arising from: (i) a combination of the Local
Content or any part thereof with other Components not provided by YJC where such
infringement would not have arisen from the use of the Local Content or portion
thereof absent such combination; or (ii) modification of the Local Content or
Yahoo Japan or any portion thereof by anyone other than YJC or on its behalf
where such infringement would not have occurred but for such modifications.
ARTICLE 9: TERM
----------------
9.1 TERM. Unless earlier terminated as provided herein or unless otherwise
provided in the Joint Venture Agreement, this Agreement shall be effective
during the period (the "TERM") from the date of this Agreement until the sooner
of: (i) the date on which the parties hereto mutually agree to terminate this
Agreement; (ii) the date on which this Agreement is terminated under Section
9.2, or (iii) the date of termination of the Joint Venture Agreement OTHER THAN:
(a) as a result of SOFTBANK'S purchase of all shares of YJC from Yahoo; or (b)
as a result of SOFTBANK terminating the Joint Venture Agreement under Section 13
for breach of the Joint Venture Agreement by Yahoo, in which event this
Agreement shall
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continue perpetually until terminated in accordance with Section9.2 of this
Agreement. Notwithstanding the foregoing, in the event that, and on the date
that, prior to any other termination hereunder, the common stock of YJC is
publicly traded in Japan or the United States, on a principal stock exchange or
trading system, the licenses granted hereunder shall become exclusive,
worldwide, perpetual (subject to termination under Section 9.2 hereto),
licenses, with the scope of rights and licenses as set forth in Section 2.1
hereto, and all of the terms and conditions of this Agreement shall remain in
full force and effect.
9.2 EARLY TERMINATION. Either party may terminate this Agreement upon written
notice in the event of (i)any material breach of any warranty, representation or
covenant of this Agreement by the other party which remains uncured thirty (30)
days after notice of such breach, or (ii)in the event of any bankruptcy,
insolvency, receivership or similar proceeding of the other party which
continues for twenty (20) days from filing.
9.3 RETURN OF INFORMATION. Within thirty (30) calendar days after the
termination or expiration of this Agreement, each party hereto shall either
deliver to the other, or destroy, all copies of any tangible Confidential
Information of the other party provided hereunder in its possession or under its
control, and shall furnish to the other party an affidavit signed by an officer
of its company certifying that to the best of its knowledge, such delivery or
destruction has been fully effected.
9.4 REMAINING PAYMENT. Within forty-five (45) calendar days of the expiration
or termination of this Agreement, each party shall pay to the other party all
sums, if any, due and owing as of the date of expiration or termination.
9.5 SURVIVAL. The respective rights and obligations of the parties under
Sections 1, 2.5, 2.6, 4.3.1, 4.3.3, 4.4, 9.3, 9.4, 9.5 and Articles 5, 7, 8, and
10 shall survive expiration or termination of this Agreement. No termination or
expiration of this Agreement shall relieve any party for any liability for any
breach of or liability accruing under this Agreement prior to termination.
ARTICLE 10: MISCELLANEOUS
--------------------------
10.1 GOVERNING LAW. This Agreement shall be interpreted and construed in
accordance with the laws of the State of California, with the same force and
effect as if fully executed and performed therein, and the laws of the United
States of America. Each of YJC and Yahoo hereby consents and submits to the
personal jurisdiction of the United States and state courts of the State of
California, and expressly agrees that the venue for any action arising under
this Agreement shall be the appropirate court sitting within the Northern
District of California.
10.2 AMENDMENT OR MODIFICATION. This Agreement may not be amended, modified
or supplemented by the parties in any manner, except by an instrument in
writing signed on behalf of each of the parties by a duly authorized officer
or representative.
10.3 NO ASSIGNMENT. Neither party shall transfer or assign any rights or
delegate any obligations hereunder, in whole or in part, whether voluntarily or
by operation of law, without
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the prior written consent of the other party. Any purported transfer,
assignment or delegation by either party without the appropriate prior written
approval shall be null and void and of no force or effect. Notwithstanding the
foregoing, without securing such prior consent, each party shall have the right
to assign this Agreement or any of its rights or obligations to an Affiliate and
either party shall have the right to assign this Agreement and the obligations
hereunder to any successor of such party by way of merger or consolidation or
the acquisition of substantially all of the business and assets of the assigning
party relating to the Agreement.
10.4 NOTICES. Except as otherwise provided herein, any notice or other
communication to be given hereunder shall be in writing and shall be (as elected
by the party giving such notice): (i) personally delivered; (ii) transmitted by
postage prepaid registered or certified airmail, return receipt requested; (iii)
deposited prepaid with a nationally recognized overnight courier service; (iv)
sent via facsimile, with a confirmation copy sent via first class mail; or (v)
sent via electronic mail, with a confirmation copy sent via first class mail.
Unless otherwise provided herein, all notices shall be deemed to have been duly
given on: (x) the date of receipt (or if delivery is refused, the date of such
refusal) if delivered personally, by courier, or by facsimile; or (y) five (5)
days after the date of posting if transmitted by mail or by electronic mail.
Either party may change its address for notice purposes hereof on not less than
five (5) days prior notice to the other party. Notice hereunder shall be
directed to a party at the address for such party which is set forth below:
To Yahoo: Yahoo! Inc.
635 Vaqueros Avenue
Sunnyvale, California 94086
Attention: Tim Koogle, President
Fax: (408) 328-3301
Copy to: James L. Brock
Venture Law Group
2800 Sand Hill Road
Menlo Park, California 94025
Fax (415) 233-8386
To YJC: Masayoshi Son
Yahoo Japan Corporation
3-42-3, Nihonbashi-Hamacho
Chuo-ku, Tokyo 103, Japan
Fax: 011-813-5641-3400
Copy to: Stephen A. Grant
Sullivan & Cromwell
125 Broad Street, Floor 32
New York, NY 10004
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Fax: (212) 558-3588
10.5 ENTIRE AGREEMENT. This Agreement represents the entire agreement of
the parties with respect to the subject matter hereof and supersedes all prior
and/or contemporaneous agreements and understandings, written or oral between
the parties with respect to the subject matter hereof.
10.6 WAIVER. Any of the provisions of this Agreement may be waived by the
party entitled to the benefit thereof. Neither party shall be deemed, by any
act or omission, to have waived any of its rights or remedies hereunder unless
such waiver is in writing and signed by the waiving party, and then only to the
extent specifically set forth in such writing. A waiver with reference to one
event shall not be construed as continuing or as a bar to or waiver of any right
or remedy as to a subsequent event.
10.7 WAIVER OF JURY TRIAL. EACH OF YJC AND YAHOO DO HEREBY KNOWINGLY,
VOLUNTARILY, INTENTIONALLY AND IRREVOCABLY WAIVE ANY RIGHT ANY PARTY MAY HAVE TO
A JURY TRIAL IN EVERY JURISDICTION IN ANY ACTION, PROCEEDING OR COUNTERCLAIM
BROUGHT BY EITHER OF THE PARTIES HERETO AGAINST THE OTHER PARTY HERETO OR THEIR
RESPECTIVE AFFILIATES, SUCCESSORS OR ASSIGNS IN RESPECT OF ANY MATTER ARISING
OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER DOCUMENT EXECUTED AND
DELIVERED BY ANY PARTY IN CONNECTION THEREWITH (INCLUDING WITHOUT LIMITATION ANY
ACTION TO RESCIND OR CANCEL THIS AGREEMENT AND ANY CLAIMS OR DEFENSES ASSERTING
THAT THIS AGREEMENT WAS FRAUDULENTLY INDUCED OR OTHERWISE VOID OR VOIDABLE).
10.8 FEES AND EXPENSES. Each party shall be responsible for the payment of
its own costs and expenses, including attorneys' fees and expenses, in
connection with the negotiation and execution of this Agreement.
10.9 RECOVERY OF COSTS AND EXPENSES. If either party to this Agreement
brings an action against the other party to enforce its rights under this
Agreement, the prevailing party shall be entitled to recover its costs and
expenses, including, without limitation, attorneys' fees and costs incurred
in connection with such action, including any appeal of such action.
10.10 SEVERABILITY. If the application of any provision or provisions of
this Agreement to any particular facts of circumstances shall be held to be
invalid or unenforceable by any court of competent jurisdiction, then: (i) the
validity and enforceability of such provision or provisions as applied to any
other particular facts or circumstances and the validity of other provisions of
this Agreement shall not in any way be affected or impaired thereby; and (ii)
such provision or provisions shall be reformed without further action by the
parties hereto and only to the extent necessary to make such provision or
provisions valid and enforceable when applied to such particular facts and
circumstances.
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10.11 OTHER AGREEMENTS. Neither party shall agree to any contractual
provision or term in any agreement with any third party which contains a
provision or term which cause such party to be in breach of or violates this
Agreement.
10.12 NO DISCLOSURE. Without the prior written consent of the other party,
neither party shall, in any manner, disclose, advertise, or publish the terms
of, or any information concerning, this Agreement; PROVIDED, HOWEVER, that
either party may disclose such portions of this Agreement as may be required by
law, subject to the provisions of Article 5 hereto.
10.13 NO THIRD PARTY BENEFICIARIES. Nothing express or implied in this
Agreement is intended to confer, nor shall anything herein confer, upon any
person other than the parties and the respective successors or assigns of the
parties, any rights, remedies, obligations or liabilities whatsoever.
10.14 COUNTERPARTS; FACSIMILES. This Agreement may be executed in any
number of counterparts, each of which when so executed and delivered shall be
deemed an original, and such counterparts together shall constitute one and the
same instrument. Each party shall receive a duplicate original of the
counterpart copy or copies executed by it. For purposes hereof, a facsimile
copy of this Agreement, including the signature pages hereto, shall be deemed to
be an original. Notwithstanding the foregoing, the parties shall each deliver
original execution copies of this Agreement to one another as soon as
practicable following execution thereof.
IN WITNESS WHEREOF, the parties to this Agreement by their duly authorized
representatives have executed this Agreement as of the date first above written.
YAHOO JAPAN CORPORATION YAHOO! INC.
By: By:
---------------------------- ----------------------------
Name: Masayoshi Son Name: Timothy Koogle
Title: President & CEO Title: President
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YAHOO! JAPAN LICENSE AGREEMENT
by and between
YAHOO! INC.
and
YAHOO JAPAN CORPORATION
APRIL 1, 1996
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